Tasman Timber Ltd & Ors v The Minister for Industry & Commerce [1983] FCA 20

Tasman Timber Ltd & Ors v The Minister for Industry & Commerce [1983] FCA 20

The decision to require and impose cash securities on New Zealand timber imports under s.42 of the Customs Act 1901 was not for the protection of the revenue of Customs as required. The Department failed to relate the amount of security to the particular subsidy, relied on irrelevant considerations by aiming to bar competition rather than counteract the subsidy, and consequently acted outside power. The decision is invalid and reviewable under the Administrative Decisions (Judicial Review) Act 1977.

Parties
Applicants: Tasman Timber Limited, Carter Holt Limited, N.Z. Forest Products Limited, Moore Le Messieur Pty Limited, Carter Merchants (Australia) Pty Limited; Respondents: Minister for Industry and Commerce, The Comptroller-General of Customs; Applicants: Homebush Bay Timbers Pty Limited, Rostata (Pty.) Limited, Trans-Tasman Timbers Pty Limited, Pinepak (Australia) Pty Limited, Odlin-McKenna-Royce Pty Limited, Gallagher Imports Pty Limited, Simmonds Lumber Pty Limited, Transylvania Timbers Pty Limited, McVicar Timber Pty Limited, A. Hudson Pty Limited, George Wills & Co Limited, H. Baigent and Sons Limited, McVicar Timber Group Limited, Thames Sawmilling Co. Limited, Tasman Pulp and Paper Co. Limited, Anderson O'Leary Limited, Onehunga Timber Co. Limited, Thurston Exports Limited, Odlins Limited, Cashmore Bros Limited, N.Z. Forest Service, F. & E. Jones Sawmiller Limited, South Pine (Nelson) Limited
Jurisdiction
Australia
Judgment Date
15 February 1983
Procedural Posture
Application for Order of Review / Judgment Following Joint Hearing of Two Applications
Outcome
Application for order of review granted
Legal Topics
Countervailing Duties, Imposition of Securities, Judicial Review Under the Administrative Decisions (judicial Review) Act 1977, Australia's Obligations Under GATT and NAFTA, Distinction Between Countervailing and Anti Dumping Duties
Administrative Law Customs Law International Trade Law Countervailing Duties Imposition of Securities Judicial Review Under the Administrative Decisions (judicial Review) Act 1977 Australia's Obligations Under GATT and NAFTA Distinction Between Countervailing and Anti Dumping Duties

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Parties

Tasman Timber Limited, Carter Holt Limited, N.Z. Forest Products Limited, Moore Le Messieur Pty Limited, Carter Merchants (Australia) Pty Limited

Applicants

Minister for Industry and Commerce, The Comptroller-General of Customs

Respondents

Homebush Bay Timbers Pty Limited, Rostata (Pty.) Limited, Trans-Tasman Timbers Pty Limited, Pinepak (Australia) Pty Limited, Odlin-McKenna-Royce Pty Limited, Gallagher Imports Pty Limited, Simmonds Lumber Pty Limited, Transylvania Timbers Pty Limited, McVicar Timber Pty Limited, A. Hudson Pty Limited, George Wills & Co Limited, H. Baigent and Sons Limited, McVicar Timber Group Limited, Thames Sawmilling Co. Limited, Tasman Pulp and Paper Co. Limited, Anderson O'Leary Limited, Onehunga Timber Co. Limited, Thurston Exports Limited, Odlins Limited, Cashmore Bros Limited, N.Z. Forest Service, F. & E. Jones Sawmiller Limited, South Pine (Nelson) Limited

Applicants

Procedural Posture

Application for Order of Review / Judgment Following Joint Hearing of Two Applications

Legal Issues

  1. 1 Whether cash securities imposed on importers of New Zealand timber pursuant to s. 42 of the Customs Act 1901 were properly imposed
  2. 2 Whether the decision to impose securities was in breach of Australia's international obligations under GATT and NAFTA
  3. 3 Whether the decision to impose cash securities is reviewable under the Administrative Decisions (Judicial Review) Act 1977

Ratio Decidendi

The decision to require and impose cash securities on New Zealand timber imports under s.42 of the Customs Act 1901 was not for the protection of the revenue of Customs as required. The Department failed to relate the amount of security to the particular subsidy, relied on irrelevant considerations by aiming to bar competition rather than counteract the subsidy, and consequently acted outside power. The decision is invalid and reviewable under the Administrative Decisions (Judicial Review) Act 1977.

Court Disposition

Application for order of review granted

Orders

  • Applicants to bring in short minutes of orders to give effect to the judgment
  • Applicants allowed only one set of costs between them